G.R. Nos.

L-66075-76 July 5, 1990 EULOGIO AGUSTIN, HEIRS OF BALDOMERO LANGCAY, ARTURO BALISI & JUAN LANGCAY, petitioners, vs. INTERMEDIATE APPELLATE COURT, MARIA MELAD, TIMOTEO MELAD, PABLO BINAYUG & GERONIMA UBINA, respondents. Antonio N. Laggui for petitioners. Pedro R. Perez, Jr. for private respondents.

GRIO-AQUINO, J.: The Cagayan River separates the towns of Solana on the west and Tuguegarao on the east in the province of Cagayan. According to the unrebutted testimony of Romeo Rigor, Geodetic Engineer of the Bureau of Lands, in 1919 the lands east of the river were covered by the Tuguegarao Cadastre. In 1925, Original Certificate of Title No. 5472 was issued for land east of the Cagayan River owned by defendant-petitioner Eulogio Agustin (Exh. 2-Agustin). As the years went by, the Cagayan River moved gradually eastward, depositing silt on the western bank. The shifting of the river and the siltation continued until 1968. In 1950, all lands west of the river were included in the Solana Cadastre. Among these occupying lands covered by the Solana Cadastre were plaintiffs-private respondents, namely, Pablo Binayug, who has been in possession of Lots 3349, 7876, 7877, 7878, 7879, 7875, 7881, 7882, 7883, 7884, 7885, 7891 and 7892, and Maria Melad, who owns Lot 3351 (Exh. 3-Binayug; Exh. B-Melad). Pablo Binayug began his possession in 1947. An area of eight (8) hectares was planted to tobacco and corn while 12 hectares were overgrown with talahib (Exh. C-1 Binayug.) Binayug's Homestead Application No. W-79055 over this land was approved in 1959 (Exh. B-Binayug). Binayug's possession was recognized in the decision in Civil Case No. 101 (Exh. F-Binayug). On the other hand, as a result of Civil Case No. 343-T, Macario Melad, the predecessor-in-interest of Maria Melad and Timoteo Melad, was issued Original Certificate of Title No. P-5026 for Lot 3351 of Cad. 293 on June 1, 1956. Through the years, the Cagayan River eroded lands of the Tuguegarao Cadastre on its eastern bank among which was defendant-petitioner Eulogio Agustin's Lot 8457 (Exh. E-Melad), depositing the alluvium as accretion on the land possessed by Pablo Binayug on the western bank. However, in 1968, after a big flood, the Cagayan River changed its course, returned to its 1919 bed, and, in the process, cut across the lands of Maria Melad, Timoteo Melad, and the spouses Pablo Binayug and Geronima Ubina whose lands were transferred on the eastern, or Tuguegarao, side of the river. To cultivate those lots they had to cross the river. In April, 1969, while the private respondents and their tenants were planting corn on their lots located on the eastern side of the Cagayan River, the petitioners, accompanied by the mayor and some policemen of Tuguegarao, claimed the same lands as their own and drove away the private respondents from the premises. On April 21, 1970, private respondents Maria Melad and Timoteo Melad filed a complaint (Civil Case No. 343-T) to recover Lot No. 3351 with an area of 5 hectares and its 6.6-hectare accretion. On April 24, 1970, private respondent Pablo Binayug filed a separate complaint (Civil Case No. 344-T) to recover his lots and their accretions. On June 16, 1975, the trial court rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby made: In Civil Case No. 343-T, commanding Eulogio Agustin, Gregorio Tuliao, Jacinto Buquel and Octavio Bancud, or anybody acting as their representative[s] or agents to vacate Lot No. 3351 of Solana Cadastre together with its accretion consisting of portions of Lots 9463, 9462 and 9461 of

Tuguegarao Cadastre and for these defendants to restore ownership in favor of Maria Melad and Timoteo Melad who are the only interested heirs of Macario Melad. In Civil Case No. 344-T, commanding defendants Justo Adduru, Andres Pastor, Teofilo Tagacay, Vicente Camilan, Nicanor Mora, Baldomero Cagurangan, Domingo Quilang, Cesar Cabalza, Elias Macababbad, Titong Macababbad, Arturo Balisi, Jose Allabun, Eulogio Agustin, Banong Aquino, Junior Cambri and Juan Langoay, or any of their agents or representatives to vacate the Lots 3349, 7876, 7877, 7878, 7879, 7875, 7881, 7882, 7883, 7884, 7885, 7891 and 7892, together with its accretion and to restore possession to plaintiffs Pablo Binayug and Geronima Ubina. Without pronouncement as to damages which were not properly proven and to costs. SO ORDERED. (As amended by the order dated August 15, 1975.) (pp. 24-25, Rollo.) Only defendant-petitioner Eulogio Agustin appealed in Civil Case No. 343-T, while in Civil Case No. 344-T, only defendants-petitioners Eulogio Agustin, Baldomero Cagurangan (substituted by his heir), Arturo Balisi and Juan Langcay appealed. But upon motion of plaintiffs-private respondents, the trial court ordered the execution pending appeal of the judgment in Civil Case No. 344-T against Cagurangan, Balisi and Langcay on the ground that their appeal was dilatory as they had not presented evidence at the trial (Order dated August 15, 1975). On November 29, 1983, the Intermediate Appellate Court rendered a decision affirming in toto the judgment of the trial court, with costs against the defendants-appellants. In their petition for review of that decision, the petitioners allege that the Court of Appeals erred: 1. in declaring that the land in question had become part of private respondents' estate as a result of accretion; 2. in declaring that the accretion to private respondents' estate which used to pertain to petitioners' estate cannot preclude the private respondents from being the owners thereof; and 3. in declaring that the ownership of private respondents over the accretion is not affected by the sudden and abrupt change in the course of the Cagayan River when it reverted to its old bed The petition is unmeritorious and must be denied. The finding of the Court of Appeals that there had been accretions to the lots of the private respondents who did not lose the ownership of such accretions even after they were separated from the principal lots by the sudden change of course of the river, is a finding of fact which is conclusive on this Court. That finding is supported by Art. 457 of the New Civil Code which provides: Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. (366) Accretion benefits a riparian owner when the following requisites are present: (1) that the deposit be gradual and imperceptible; (2) that it resulted from the effects of the current of the water; and (3) that the land where accretion takes place is adjacent to the bank of a river (Republic vs. CA, 132 SCRA 514). All these requisites of accretion are present in this case for, as the trial court found: . . . Cagayan River did move year by year from 1919 to 1968 or for a period of 49 years. Within this period, the alluvium (sic) deposited on the other side has become greater in area than the original lands of the plaintiffs in both cases. Still the addition in every year is imperceptible in nature, one could not discern it but can be measured after the lapse of a certain time. The testimonial evidence in these cases that said Cagayan River moved eastward year by year is overwhelming as against the denial of defendant Eulogio Agustin alone. Cesar Caronan, one time mayor of Solana, Cagayan, said so. Arturo Taguian said so. Timoteo Melad said so. Francisco Ubina said so. Geodetic Engineer Rigor impliedly said so when he testified that when Solana Cadastre was

executed in 1950 it overlapped portions of Tuguegarao Cadastre executed in 1919. This could not have happened if that part of Tuguegarao Cadastre was not eroded by the overflow of the Cagayan River. These testimonies cannot be destroyed by the denials of Vicente Cauilan, Marcelo Agustin and Eulogio Agustin alone . . . . (p. 27, Rollo.) The appellate court confirmed that the accretion on the western bank of the Cagayan River had been going on from 1919 up to 1968 or for a period of 49 years. It was gradual and imperceptible. Only when Lot No. 3351, with an original area of 5 hectares described in the free patent that was issued to Macario Melad in June 1956, was resurveyed in 1968 did it become known that 6.6 hectares had been added to it. Lot No. 3351, covered by a homestead patent issued in June, 1950 to Pablo Binayug, grew from its original area of 18 hectares, by an additional 50 hectares through alluvium as the Cagayan River gradually moved to the east. These accretions belong to riparian owners upon whose lands the alluvial deposits were made (Roxas vs. Tuason, 9 Phil. 408; Director of Lands vs. Rizal, 87 Phil. 806). The reason for this principle is because, if lands bordering on streams are exposed to floods and other damage due to the destructive force of the waters, and if by virtue of law they are subject to encumbrances and various kinds of easements, it is only just that such risks or dangers as may prejudice the owners thereof should in some way be compensated by the right of accretion (Cortes vs. City of Manila, 10 Phil. 567).
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The private respondents' ownership of the accretion to their lands was not lost upon the sudden and abrupt change of the course of the Cagayan River in 1968 or 1969 when it reverted to its old 1919 bed, and separated or transferred said accretions to the other side (or eastern bank) of the river. Articles 459 and 463 of the New Civil Code apply to this situation. Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it, provided that he removes the same within two years. Art. 463. Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner of the land retains his ownership. He also retains it if a portion of land is separated from the estate by the current. (Emphasis supplied). In the case at bar, the sudden change of course of the Cagayan River as a result of a strong typhoon in 1968 caused a portion of the lands of the private respondents to be "separated from the estate by the current." The private respondents have retained the ownership of the portion that was transferred by avulsion to the other side of the river. WHEREFORE, the petition is denied for lack of merit. The decision of the Intermediate Appellate Court, now Court of Appeals, is hereby affirmed. Costs against the petitioners. SO ORDERED. G.R. No. L-30829 August 28, 1929

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, applicant-appellant, vs. COLEGIO DE SAN JOSE, ET AL., claimants. COLEGIO DE SAN JOSE, appellee. Attorney-General Jaranilla for appellant. Vicente O. Romualdez for appellee. VILLA-REAL, J.: This is an appeal taken by the Government of the Philippine Islands from a decision of the Court of First Instance of Laguna, rendered in cadastral case No. 30, G. L. R. O. Record No. 359 of the municipality of San Pedro, Province of Laguna, ordering the registration of the two parcels of land known as lots 1 and 2 described in the application, in favor of the Colegio de San Jose in accordance with the provisions of law, without special pronouncement as to the costs, it being understood, however, that the lease of said lands executed by the aforesaid Colegio de San Jose in

favor of Carlos Young y Baldwin is valid and subsists under the terms and conditions set forth in the instruments, Exhibits Y-1 and Y-2, and providing for the issuance of the proper decree once said decision becomes final. In support of the appeal, the appellant assigns the following alleged errors as committed by the court below in its judgment, to wit: 1. The lower court erred in not holding that the parcels of land in question are part of the bed of Laguna Lake and, therefore, belong to the public domain. 2. The lower court erred in finding that said lands are included in the title of the appellee and in finding that the appellee has been in the possession and occupation of the same. 3. The lower court erred in qualifying as extraordinary inundations the fact that the lands in dispute are under water during the rainy season. 4. The lower court erred in decreeing the registration of the lands in dispute to the appellee and in denying the appellant's motion for a new trial. The pertinent facts necessary to decide the questions of fact and of law raised in the instant appeal, are as follows: During the months of September, October and November every year, the waters of Laguna de Bay cover a long strip of land along the eastern border of the two parcels of land in question, the width of which strip varies from 50 to 70 meters according to the evidence of the Colegio de San Jose and up to the eastern border of the pass claimed by the municipality of San Pedro Tunasan, according to some witnesses for the Insular Government; and, according to other witnesses for the Insular Government, the flooded strip includes the aforementioned pass itself, which is usually completely covered with water, so that the people can fish in said flooded strip. The claimant Colegio de San Jose contends, and its evidence tends to prove, that the above-named parcels of land are a part of the Hacienda de San Pedro Tunasan belonging to said claimant, which has been in possession thereof since time immemorial by means of its tenants or lessees and farmers. On the other hand, the Government of the Philippine Islands contends that the said two parcels of land belong to the public domain, and its evidence tends to prove that they have always been known as the shores of Laguna de Bay, and they are situated alongside the highway running parallel to said shore; that the water of the lake has receded a great distance on that side; that said parcels of land had been under water formerly; that at present, during the rainy season, the water of the lake reaches the highway, and that when the water recedes the people of the place occupy and cultivate said lands during the dry season. The only question to be decided in the present appeal is whether the two aforesaid parcels of land in controversy belong to the Hacienda de San Pedro Tunasan and are owned by the claimant Colegio de San Jose, or whether they belong to the public domain as a part of the bed of Laguna de Bay. It is of primary importance to determine whether the body of water called Laguna de Bay is naturally and legally a lake or a lagoon. The Enciclopedia Juridica Espanola, volume XXI, pages 124 and 125, defines "lake" and "lagoon" as follows: LAKE. A body of water formed in depressions of the earth. Ordinarily fresh water, coming from rivers, brooks, or springs, and connected with the sea by them. LAGOON. A small lake, the hollow bed of which is bounded by elevations of land. Laguna de Bay is a body of water formed in depressions of the earth; it contains fresh water coming from rivers and brooks or springs, and is connected with Manila Bay by the Pasig River. According to the definition just quoted, Laguna de Bay is a lake.

Inasmuch as Laguna de Bay is a lake, we must resort to the legal provisions governing the ownership and use of lakes and their beds and shores, in order to determine the character and ownership of the parcels of land in question. Article 407 of the Civil Code says the following in its pertinent part: ART. 407. The following are of public ownership: xxx xxx xxx

4. Lakes and ponds formed by nature on public lands, and their channels. xxx xxx xxx

And article 44 of the Law of Waters of August 3, 1866, provides as follows: ART. 44. Natural ponds and lakes existing upon public lands and fed by public waters, belong to the public domain. xxx xxx xxx

It is beyond discussion that Laguna de Bay belongs to the public domain, being a natural lake existing upon public lands, and fed by public waters from rivers, brooks and springs. Now then, what is the bed of Laguna de Bay? Article 74 of the Law of Waters cited above defines the bed of lake as follows: ART. 74. The natural bed or basin of lakes, ponds, or pools, is the ground covered by their waters when at their highest ordinary depth. This definition raises the question: Which is the natural bed or basin of Laguna de Bay? The evidence shows tat during the dry season, that is, during the months of December, January, February, March, April, May, June, July and August, the water of the lake at its highest depth reaches no farther that the line forming the northeastern boundary of the two parcels of land in controversy, and that it is only during the wet season, that is, during the months of September, October, and November, that said water rises to the highway, completely covering said parcels of land. Therefore, the waters of Laguna de Bay have two different levels during the year: One during the dry season, which obtains during nine months, and the other during the wet season, which continues for three months. Which of these two heights marks the land limit of the waters of Laguna de Bay, that is, which of them forms its natural bed or basin? The law says, the highest ordinary depth. Now then, which of the two aforesaid depths of the waters of Laguna de Bay is the ordinary one? The word "ordinary" is defined in the Dictionary of the Spanish Academy as follows: ORDINARY. Not exceeding the average; common, natural, occurring always or most of the time; not going beyond what happens or takes place. The word extraordinary is defined in the same dictionary as follows: EXTRAORDINARY. Uncommon, transcending the general rule, order or measure; exceeding, surpassing, or going beyond that which is ordinary, commonly met with, current, settled, or admitted by the majority. According to the foregoing definitions of the words "ordinary" and "extraordinary," the highest depth of the waters of Laguna de Bay during the dry season is the ordinary one, and the highest depth they attain during the rainy season is the extraordinary one; inasmuch as the former is the one which is regular, common, natural, which occurs always or

most of the time during the year, while the latter is uncommon, transcends the general rule, order of measure, and goes beyond that which is the ordinary depth. If, according to the definition given by article 74 of the Law of Waters quoted above, the natural bed or basin of the lakes is the ground covered by their waters when at their highest ordinary depth, the natural bed or basin of Laguna de Bay is the ground covered by its waters when at their highest depth during the dry season, that is, up to the northeastern boundary of the two parcels of land in question. Inasmuch as, according to article 407 of the Civil Code, cited above, lakes and their beds belong to the public domain, and inasmuch as, according to article 74 of the Law of Waters cited above, the bed of lake is the ground covered by its waters at their highest ordinary depth; whereas the waters of Laguna de Bay at their highest depth reach no farther than the northeastern boundary of the two parcels of land in question, said parcels are outside said bed and, consequently, do not belong to the public domain. The Government of the Philippine Islands also contends that as the waters of Laguna de Bay have receded very much, as a result of which the two parcels of land under discussion, which had been under water before, were left uncovered, the claimant Colegio de San Jose which owned the estate bordering upon said Laguna de Bay, did not acquire said two parcels of land, in accordance with the provisions of article 367 of the Civil Code, as follows: ART. 367. The owners of estates bordering on ponds or lagoons, do not acquire the land left dry by the natural decrease of the waters, nor lose those inundated by them in extraordinary floods. As may be seen, the legal provision quoted above, cited by the appellant in support of its contention, refers to ponds and lagoons, and has therefore no application to the case at bar, which refers to a lake, a lagoon being legally distinct in character from a lake. Having pointed out that the inundations of the two parcels of land in question during the months of September, October and November, is extraordinary, the legal provision applicable to the case is that contained in article 77 of the aforesaid Law of Waters, which reads: ART. 77. Lands accidentally inundated by the waters of lakes, or by creeks, rivers, and other streams, shall continue to be the property of their respective owners. If, as we have seen, the two parcels of land in litigation form no part of the bed of Laguna de Bay, and consequently, do not belong to the public domain, they must belong to the claimant Colegio de San Jose as a part of the Hacienda de San Pedro Tunasan, owned by it, the northeastern part of which borders on said lake, and in accordance with the legal provision just quoted, the fact that they are inundated by its waters during extraordinary risings, which take place during the months of September, October and November, does not deprive said claimant of the ownership thereof. Article 84 of the said Law of Waters further provides: ART 84. Accretions deposited gradually upon lands contiguous to creeks, streams, rivers, and lakes, by accessions or sediments from the waters thereof, belong to the owners of such lands. xxx xxx xxx

Even if, therefore, the two parcels of land in litigation were considered as accretions gradually deposited by accessions or sediments from the waters of Laguna de Bay, they would still, according to the legal provision just quoted, belong to the claimant Colegio de San Jose as owner of the lands bordering on said Laguna de Bay. The appellant also contends that the two parcels of land form a part of the shores of Laguna de Bay and are therefore of public ownership, citing paragraph 3 of article 1 of the Law of Waters, which says: ART. 1. The following are part of the national domain open to public use: xxx xxx xxx

3. The shores. By the shore is understood that space covered and uncovered by the movement of the tide. Its interior or terrestrial is the line reached by the highest equinoctial tides. Where the tides are not appreciable, the shore begins on the land side at the line reached by the sea during ordinary storms or tempests. As the court below correctly held, this legal provision refers to the waters of the sea, being included under Title I, which treats of the ownership and use of said waters of the sea. Lake waters, being terrestrial waters, their ownership and use are governed by Title II of said Law of Waters. In the same manner as the shore of the sea is that space covered and uncovered by the waters during the tides, its interior or terrestrial limit being the line reached by its highest ordinary depth. In the instant case, the interior or terrestrial limit of the Laguna de Bay is the ground covered by its waters in its highest ordinary depth, that is, up to the northeastern boundary of the two parcels of land in question. Summarizing, we find: (1) That the natural bed or basin of Laguna de Bay is the ground covered by its waters at their highest ordinary depth during the dry season, that is, during the months of December, January, February, March, April, May, June, July and August; (2) that the highest depth reached by said waters during the rainy season, or during the months of September, October and November, is extraordinary; (3) that the two parcels of land in litigation form an integral part of the Hacienda de San Pedro Tunasan belonging to the claimant Colegio de San Jose; (4) that said two parcels of land, being accidentally inundated by the waters of Laguna de Bay continue to be the property of the claimant Colegio de San Jose (art. 77, Law of Waters of August 3, 1866); (5) that even supposing that the said two parcels of land have been formed by accession or deposits of sediment by the waters of said Laguna de Bay, they still belong to the said claimant Colegio de San Jose, as owner of the land of theHacienda de San Pedro Tunasan, bordering on said Laguna de Bay (art. 84, Law of Waters of August 3, 18660; (6) that the provisions of the Law of Waters regulating the ownership and use of the waters of the sea are not applicable to the ownership and use of lakes, which are governed by special provisions. In the view of the foregoing considerations, we are of the opinion and so hold, that the judgment appealed from should be affirmed, without special pronouncements as to costs. So ordered. G.R. No. 77294 December 12, 1988 ANGELICA VIAJAR and CELSO VIAJAR, plaintiffs-appellants, vs. COURT OF APPEALS, LEONOR P. LADRIDO, LOURDES LADRIDO IGNACIO, EUGENIO P. LADRIDO and L P. LADRIDO, defendants-appellees. Ramon A. Gonzales for petitioner. Miraflores Law Offices for respondents. MEDIALDEA, J.: This is a petition for review on certiorari of the decision of the Court of Appeals dated December 29, 1986, in CA-G.R. CV No. 69942 entitled, "ANGELICA VIAJAR, et. al., Plaintiffs-Appellants, versus LEONOR LADRIDO, et. al., Defendants-Appellees," affirming the decision of the Court of First Instance (now Regional Trial Court) of Iloilo dated December 10, 1981. The antecedent facts in the instant case are as follows: The spouses Ricardo Y. Ladrido and Leonor P. Ladrido were the owners of Lot No. 7511 of the Cadastral Survey of Pototan situated in barangay Cawayan, Pototan, Iloilo. This lot contained an area of 154,267 square meters and was registered in the names of the spouses under Transfer Certificate of Title No. T-21940 of the Register of Deeds of Iloilo. Spouses Rosendo H. Te and Ana Te were also the registered owners of a parcel of land described in their title as Lot No. 7340 of the Cadastral Survey of Pototan. On September 6, 1973, Rosendo H. Te, with the conformity of Ana Te, sold this lot to Angelica F. Viajar and Celso F. Viajar for P5,000. A Torrens title was later issued in the names of Angelica F. Viajar and Celso F. Viajar.

Later, Angelica F. Viajar had Lot No. 7340 relocated and found out that the property was in the possession of Ricardo Y. Ladrido. Consequently, she demanded its return but Ladrido refused. On February 15, 1974, Angelica F. Viajar and Celso F. Viajar instituted a civil action for recovery of possession and damages against Ricardo Y. Ladrido. This case was docketed as Civil Case No. 9660 of the Court of First Instance of Iloilo. Summoned to plead, defendant Ladrido filed his answer with a counterclaim. Plaintiffs filed their reply to the answer. Subsequently, the complaint was amended to implead Rosendo H. Te as another defendant. Plaintiffs sought the annulment of the deed of sale and the restitution of the purchase price with interest in the event the possession of defendant Ladrido is sustained. Defendant Te filed his answer to the amended complaint and he counter claimed for damages. Plaintiffs answered the counterclaim. During the pendency of the case, plaintiff Celso F. Viajar sold his rights over Lot No. 7340 to his mother and coplaintiff, Angelica F. Viajar. For this reason, plaintiff Angelica F. Viajar now appears to be the sole registered owner of this lot. On May 25, 1978, defendant Ladrido died. He was substituted in the civil action by his wife, Leonor P. Ladrido, and children, namely: Lourdes Ladrido-Ignacio, Eugenio P. Ladrido and Manuel P. Ladrido, as parties defendants. The facts admitted by the parties during the pre-trial show that the piece of real property which used to be Lot No. 7340 of the Cadastral Survey of Pototan was located in barangay Guibuanogan Pototan, Iloilo; that it consisted of 20,089 square meters; that at the time of the cadastral survey in 1926, Lot No. 7511 and Lot No. 7340 were separated by the Suague River; that the area of 11,819 square meters of what was Lot No. 7340 has been in the possession of the defendants; that the area of 14,036 square meters, which was formerly the river bed of the Suague River per cadastral survey of 1926, has also been in the possession of the defendants; and that the plaintiffs have never been in actual physical possession of Lot No. 7340. After trial on the merits, a second amended complaint which included damages was admitted. The plaintiffs raised the following issues to be resolved: 1. Whether the change in the course of the Suague River was sudden as claimed by the plaintiffs or gradual as contended by the defendants; 2. Assuming arguendo it was gradual, whether or not the plaintiffs are still entitled to Lot "B' appearing in Exhibit "4" and to one-half () of Lot "A," also indicated in Exhibit "4;" and 3. Damages (pp. 12-13, Rollo). On December 10, 1981, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiffs: 1. Dismissing the complaint of plaintiffs Angelica F. Viajar and Celso F. Viajar with costs against them; 2. Declaring defendants Leonor P. Ladrido, Lourdes Ladrido-Ignacio, Eugenio P. Ladrido and Manuel P. Ladrido as owner of the parcel of land indicated as Lots A and B in the sketch plan (Exhs. 'C' as well as '4,' '4-B' and '4-C') situated in barangays Cawayan and Guibuanogan Pototan, Iloilo, and containing an area of 25,855 square meters, more or less; and 3. Pronouncing that as owners of the land described in the preceding paragraph, the defendants are entitled to the possession thereof.

Defendants' claim for moral damages and attorney's fees are dismissed. SO ORDERED (p. 36, Rollo). Not satisfied with the decision, the plaintiffs appealed to the Court of Appeals and assigned the following errors: I. THE LOWER COURT ERRED IN NOT HOLDING THAT PLAINTIFFS ARE ENTITLED TO LOT B APPEARING IN EXHIBIT "4" AND TO ONE-HALF () OF LOT A IN THE SAID EXHIBIT "4." II THE LOWER COURT ERRED IN NOT AWARDING DAMAGES TO PLAINTIFFS (p. 42, Rollo). As earlier stated, the Court of Appeals affirmed the decision of the court a quo. Plaintiffs (the petitioners herein) now come to Us claiming that the Court of Appeals palpably erred in affirming the decision of the trial court on the ground that the change in the course of the Suague River was gradual and not sudden. In the decision appealed from, the Court of Appeals held: This appeal is not impressed with merit. Article 457 of the New Civil Code provides that: Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. The presumption is that the change in the course of the river was gradual and caused by accretion and erosion (Martinez Canas vs. Tuason, 5 Phil. 668; Payatas Estate Improvement Co. vs. Tuason, 53 Phil. 55; C.H. Hodges vs. Garcia, 109 Phil. 133). In the case at bar, the lower court correctly found that the evidence introduced by the plaintiff to show that the change in the course of the Suague River was sudden or that it occurred through avulsion is not clear and convincing. Contrariwise, the lower court found that: ... the defendants have sufficiently established that for many years after 1926 a gradual accretion on the eastern side of Lot No. 7511 took place by action of the current of the Suague River so that in 1979 an alluvial deposit of 29,912 square meters (2.9912 hectares), more or less, had been added to Lot No. 7511. (Exhs. '1' as well as Exhs. 'C' and '4'). Apropos it should be observed that the accretion consisted of Lot A with an area of 14,036 square meters; Lot B, 11,819 square meters; and Lot C, 4,057 square meters. (Exhs. '4-B,' '4-C' and '4-D'). Only Lot C is not involved in this litigation. (See Pre-trial Order, supra) The established facts indicate that the eastern boundary of Lot No. 7511 was the Suague River based on the cadastral plan. For a period of more than 40 years (before 1940 to 1980) the Suague River overflowed its banks yearly and the property of the defendant gradually received deposits of soil from the effects of the current of the river. The consequent increase in the area of Lot No. 7511 due to alluvion or accretion was possessed by the defendants whose tenants plowed and planted the same with coin and tobacco. The quondam river bed had been filled by accretion through the years. The land is already plain and there is no indication on the ground of any abandoned river bed. The river bed is definitely no longer discernible now.

What used to be the old river bed (Lot A) is in level with Lot No. 7511. So are the two other areas to the East. (Lots B and C) Lots A, B and C are still being cultivated. Under the law, accretion which the banks or rivers may gradually receive from the effects of the current of the waters becomes the property of the owners of the lands adjoining the banks. (Art. 366, Old Civil Code; Art. 457, New Civil Code which took effect on August 30, 1950 [Lara v. Del Rosario, 94 Phil. 778]. Therefore, the accretion to Lot No. 7511 which consists of Lots A and B (see Exhs. 'C' and '4') belongs to the defendants (pp. 34-35, Record on Appeal). We find no cogent reason to disturb the foregoing finding and conclusion of the lower court. The second assignment of error is a mere offshoot of the first assignment of error and does not warrant further discussion (pp. 4244, Rollo). The petition is without merit. The petitioners contend that the first issue raised during the trial of the case on the merits in the Court of First Instance, that is, "whether the change in the course of the Suague River was sudden as claimed by the plaintiffs or gradual as contended by the defendants," was abandoned and never raised by them in their appeal to the Court of Appeals. Hence, the Court of Appeals, in holding that the appeal is without merit, because of the change of the Suague River was gradual and not sudden, disposed of the appeal on an issue that was never raised and, accordingly, its decision is void. In support of its contention, petitioners cite the following authorities: It is a well-known principle in procedure that courts of justice have no jurisdiction or power to decide a question not in issue (Lim Toco vs. Go Fay, 80 Phil. 166). A judgment going outside the issues and purporting to adjudicate something upon which the parties were not heard, is not merely irregular, but extra-judicial and invalid ( Salvante vs. Cruz, 88 Phil. 236-244; Lazo vs. Republic Surety & Insurance Co., Inc., 31 SCRA 329, 334). The pivotal issue in the petitioners' appeal was whether the change in the course of the Suague River was gradual or sudden because the trial court below resolved the same in its decision thus subjecting the same to review by respondent appellate court. By simply abandoning this issue, the petitioners cannot hope that the affirmance of the decision wherein this issue was resolved makes the decision of the Court of Appeals void. In effect, the petitioners are expounding a new procedural theory that to render a questioned decision void, all that has to be done is to simply abandon on appeal the pivotal issue as resolved by the lower court and when its decision is affirmed on appeal, attack the decision of the appellate court as void on the principle that a court of justice has no jurisdiction or power to decide the question not in issue. This is not correct. Even the authorities cited by the petitioners, more specifically the Salvante and Lazo cases, supra, do not support their contention. They were heard in the trial court and they cannot complain that the proceeding below was irregular and hence, invalid. The trial court found that the change in the course of the Suague River was gradual and this finding was affirmed by the respondent Court of Appeals. We do not find any valid reason to disturb this finding of fact. Article 457 of the New Civil Code (reproduced from Article 366 of the Old), the law applied by the courts a quoprovides: Art. 457. To the owners of the lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Petitioners contend that this article must be read together with Sections 45 an 46 of Act No. 496 which provides:

SEC. 45. 1 The obtaining of a decree of registration and the entry of a certificate of title shall be regarded as an agreement running with the land, and binding upon the applicant and all successors in title that the land shall be and always remain registered land, and subject to the provisions of this Act and all Acts amendatory thereof.

SEC. 46. 2 No title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession.
As a result, petitioners contend, Article 457 of the New Civil Code must be construed to limit the accretion mentioned therein as accretion of unregistered land to the riparian owner, and should not extend to registered land. Thus, the lot in question having remained the registered land of the petitioners, then the private respondents cannot acquire title there in derogation to that of the petitioners, by accretion, for that will defeat the indefeasibility of a Torrens Title. The rule that registration under the Torrens System does not protect the riparian owner against the diminution of the area of his registered land through gradual changes in the course of an adjoining stream is well settled. InPayatas Estate Improvement Co. vs. Tuason, 53 Phil. 55, We ruled: The controversy in the present cases seems to be due to the erroneous conception that Art. 366 of the Civil Code does not apply to Torrens registered land. That article provides that "any accretions which the banks of rivers may gradually receive from the effects of the current belong to the owners of the estates bordering thereon." Accretions of that character are natural incidents to land bordering on running streams and are not affected by the registration laws. It follows that registration does not protect the riparian owner against diminution of the area of his land through gradual changes in the course of the adjoining stream. In C.N. Hodges vs. Garcia, 109 Phil. 133, We also ruled: It clearly appearing that the land in question has become part of defendant's estate as a result of accretion, it follows that said land now belongs to him. The fact that the accretion to his land used to pertain to plaintiffs estate, which is covered by a Torrens Certificate of Title, cannot preclude him (defendant) from being the owner thereof. Registration does not protect the riparian owner against the diminution of the area of his land through gradual changes in the course of the adjoining stream. Accretions which the banks of rivers may gradually receive from the effect of the current become the property of the owners of the banks (Art. 366 of the Old Civil Code; Art. 457 of the New). Such accretions are natural incidents to land bordering on running streams and the provisions of the Civil Code in that respect are not affected by the Registration Act. We find no valid reason to review and abandon the aforecited rulings. As the private respondents are the owners of the premises in question, no damages are recoverable from them. ACCORDINGLY, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. G.R. No. 157906 November 2, 2006

JOAQUINITA P. CAPILI, Petitioner, vs. SPS. DOMINADOR CARDAA and ROSALITA CARDAA, Respondents. DECISION QUISUMBING, J.: Before us is a petition for review assailing the Decision1 dated October 18, 2002 of the Court of Appeals in CA-G.R. CV. No. 54412, declaring petitioner liable for negligence that resulted in the death of Jasmin Cardaa, a school child aged 12, enrolled in Grade 6, of San Roque Elementary School, where petitioner is the principal. Likewise assailed is the Resolution2 dated March 20, 2003 denying reconsideration. The facts are as follows:

On February 1, 1993, Jasmin Cardaa was walking along the perimeter fence of the San Roque Elementary School when a branch of a caimito tree located within the school premises fell on her, causing her instantaneous death. Thus, her parents - Dominador and Rosalita Cardaa - filed a case for damages before the Regional Trial Court of Palo, Leyte against petitioner. The Cardaas alleged in their complaint that even as early as December 15, 1992, a resident of the barangay, Eufronio Lerios, reported on the possible danger the tree posed to passersby. Lerios even pointed to the petitioner the tree that stood near the principals office. The Cardaas averred that petitioners gross negligence and lack of foresight caused the death of their daughter. Petitioner denied the accusation and said that at that time Lerios had only offered to buy the tree. She also denied knowing that the tree was dead and rotting. To prove her point, she presented witnesses who attested that she had brought up the offer of Lerios to the other teachers during a meeting on December 15, 1992 and assigned Remedios Palaa to negotiate the sale. In a Decision3 dated February 5, 1996, the trial court dismissed the complaint for failure of the respondents to establish negligence on the part of the petitioner. On appeal, the Court of Appeals reversed the trial courts decision. The appellate court found the appellee (herein petitioner) liable for Jasmins death, as follows: Foregoing premises considered, the instant appeal is GRANTED. Appellee Joaquinita Capili is hereby declared liable for negligence resulting to the death of Jasmin D. Cardaa. She is hereby ordered to indemnify appellants, parents of Jasmin, the following amounts: 1. For the life of Jasmin D. Cardaa P50,000.00; 2. For burial expenses 15,010.00; 3. For moral damages 50,000.00; 4. For attorneys fees and litigation 10,000.00. expenses SO ORDERED.4 Petitioners motion for reconsideration was denied. Petitioner now comes before us submitting the following issues for our resolution: I WHETHER OR NOT THE COURT OF APPEALS VIS--VIS THE SET OF FACTS STATED IN THE CHALLENGED DECISION, ERRED IN FINDING THE PETITIONER NEGLIGENT AND THEREFORE LIABLE FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE AND IN ORDERING THE PETITIONER TO PAY DAMAGES TO THE RESPONDENTS; AND II WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION FOR RECONSIDERATION.5 On the other hand, respondents posit the following issue: Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division, in CA G.R. CV. No. 54412 promulgated on October 18, 2002 should be affirmed and respected, thus remain undisturbed.6

Primarily, the issue is whether petitioner is negligent and liable for the death of Jasmin Cardaa. Petitioner asserts that she was not negligent about the disposal of the tree since she had assigned her next-in-rank, Palaa, to see to its disposal; that despite her physical inspection of the school grounds, she did not observe any indication that the tree was already rotten nor did any of her 15 teachers inform her that the tree was already rotten;7 and that moral damages should not be granted against her since there was no fraud nor bad faith on her part. On the other hand, respondents insist that petitioner knew that the tree was dead and rotting, yet, she did not exercise reasonable care and caution which an ordinary prudent person would have done in the same situation. To begin, we have to point out that whether petitioner was negligent or not is a question of fact which is generally not proper in a petition for review, and when this determination is supported by substantial evidence, it becomes conclusive and binding on this Court.8 However, there is an exception, that is, when the findings of the Court of Appeals are incongruent with the findings of the lower court. 9 In our view, the exception finds application in the present case. The trial court gave credence to the claim of petitioner that she had no knowledge that the tree was already dead and rotting and that Lerios merely informed her that he was going to buy the tree for firewood. It ruled that petitioner exercised the degree of care and vigilance which the circumstances require and that there was an absence of evidence that would require her to use a higher standard of care more than that required by the attendant circumstances.10 The Court of Appeals, on the other hand, ruled that petitioner should have known of the condition of the tree by its mere sighting and that no matter how hectic her schedule was, she should have had the tree removed and not merely delegated the task to Palaa. The appellate court ruled that the dead caimitotree was a nuisance that should have been removed soon after petitioner had chanced upon it. 11 A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary prudence and may be one which creates a situation involving an unreasonable risk to another because of the expectable action of the other, a third person, an animal, or a force of nature. A negligent act is one from which an ordinary prudent person in the actors position, in the same or similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not to do the act or to do it in a more careful manner. 12 The probability that the branches of a dead and rotting tree could fall and harm someone is clearly a danger that is foreseeable. As the school principal, petitioner was tasked to see to the maintenance of the school grounds and safety of the children within the school and its premises. That she was unaware of the rotten state of a tree whose falling branch had caused the death of a child speaks ill of her discharge of the responsibility of her position. In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred.13 The fact, however, that respondents daughter, Jasmin, died as a result of the dead and rotting tree within the schools premises shows that the tree was indeed an obvious danger to anyone passing by and calls for application of the principle of res ipsa loquitur. The doctrine of res ipsa loquitur applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.14 The effect of the doctrine of res ipsa loquitur is to warrant a presumption or inference that the mere falling of the branch of the dead and rotting tree which caused the death of respondents daughter was a result of petitioners negligence, being in charge of the school. In the case of D.M. Consunji, Inc. v. Court of Appeals,15 this Court held:

As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes thatprima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The concept of res ipsa loquitur has been explained in this wise: While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendants want of care. The procedural effect of the doctrine of res ipsa loquitur is that petitioners negligence is presumed once respondents established the requisites for the doctrine to apply. Once respondents made out a prima facie case of all requisites, the burden shifts to petitioner to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference.16 Was petitioners explanation as to why she failed to have the tree removed immediately sufficient to exculpate her? As the school principal, petitioner was tasked to see to the maintenance of the school grounds and safety of the children within the school and its premises. That she was unaware of the rotten state of the tree calls for an explanation on her part as to why she failed to be vigilant. Petitioner contends she was unaware of the state of the dead and rotting tree because Lerios merely offered to buy the tree and did not inform her of its condition. Neither did any of her teachers inform her that the tree was an imminent danger to anyone. She argues that she could not see the immediate danger posed by the tree by its mere sighting even as she and the other teachers conducted ground inspections. She further argues that, even if she should have been aware of the danger, she exercised her duty by assigning the disposition of the tree to another teacher. We find petitioners explanation wanting. As school principal, petitioner is expected to oversee the safety of the schools premises. The fact that she failed to see the immediate danger posed by the dead and rotting tree shows she failed to exercise the responsibility demanded by her position.
1wphi 1

Moreover, even if petitioner had assigned disposal of the tree to another teacher, she exercises supervision over her assignee.17 The record shows that more than a month had lapsed from the time petitioner gave instruction to her assistant Palaa on December 15, 1992, to the time the incident occurred on February 1, 1993. Clearly, she failed to check seasonably if the danger posed by the rotting tree had been removed. Thus, we cannot accept her defense of lack of negligence. Lastly, petitioner questions the award of moral damages. Moral damages are awarded if the following elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission factually established; (3) a wrongful act or omission by the defendant as the proximate cause of the injury sustained by the claimant; and (4) the award of damages predicated on any of the cases stated in Article 2219 of the Civil Code. 18However, the person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, and serious anxiety as the result of the actuations of the other party. Invariably, such action must be shown to have been willfully done in bad faith or with ill motive.19 Under the circumstances, we have to concede that petitioner was not motivated by bad faith or ill motive vis--vis respondents daughters death. The award of moral damages is therefore not proper.

In line with applicable jurisprudence, we sustain the award by the Court of Appeals of P50,000 as indemnity for the death of Jasmin,20 and P15,010 as reimbursement of her burial expenses.21 WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002 and the Resolution dated March 20, 2003, of the Court of Appeals in CA-G.R. CV. No. 54412 are AFFIRMED with MODIFICATION such that the award of moral damages is hereby deleted. Costs against petitioner. SO ORDERED.